Medieval attitudes to legal documents

There has for a while now been going on an argument about exactly how literate some of the big early medieval states’ administrations were. For the Carolingian Empire François-Louis Ganshof started it, but since Rosamond McKitterick started concentrating people on it it has snowballed.1 Meanwhile for Anglo-Saxon England James Campbell long ago argued that the Old English state was a heavy user of written orders, written law and so on and I was just reading the other day Simon Keynes’s 1990 article expanding on and nuancing that take, that Campbell has been enlarging ever since.2 And this is just dipping one’s toes in the debate, naturally. Nothing gets scholars going like talking about the making of their source texts, it’s like television about film-making.

A lot of Simon Keynes’s article strikes me as special pleading, by now. I have the greatest respect for Simon, but I think that in 1990 medieval scholars generally were only halfway through a parabola from which we have now landed, and Simon’s article is a specimen of the awkward state the debate on these texts was then in, as it tried to shed anachronism and outdated terms and get closer to the way the people who were the subject of the debate thought about the texts we now have left by them. So Simon was then largely taking part, it seems to me, in a debate about how much Anglo-Saxon government used features of administration that we’d think modern, like written instructions, sealed orders, title deeds and proscriptive lawcodes.

The problem he faced then and that we still face now is that a lot of the texts we have of such administrative, ‘official’ documents, are not official issue, but records made by interested parties for their own use. Simon has been arguing for a long time that royal Anglo-Saxon charters were from at least I think the late tenth century issued from a central office following the king, a chancery if you will. But many of the manuscripts of such documents, and even more so from earlier, come from the pens of scribes at the beneficiary institutions. The same is true of the lawcodes, I gather; and it’s certainly also true of Carolingian capitularies, which mainly survive to us as amateur compilations even though there is ample evidence, which Ganshof was first to exploit, that texts or at least reports of their contents were sent widely through the Empire. In 1990 Simon was arguing somewhat awkwardly that it was clear despite the preservation that the government was still using lots of documents, and that this made it literate while still making heavy use of oral procedures too.

From 17 years on from there, I don’t think I’m the only one who thinks this way, but: that’s not the point. We know by now that medieval people in court used written evidence when they had it, and oral testimony too, but that the two don’t compete, but complement.3 Usually Catalan law cases involve people swearing that the document that’s been produced is true; sometimes the judges decided that it wasn’t.4 Frankish cases also proliferate in oaths, and though often institutions bring charters you could certainly win a case without them. (And of course, we only usually have cases where the preserving institution won.)

But even this is still struggling to shake off an oral/textual dichotomy that seems obvious to us, but which repeated studies have had to blur for the Middle Ages. In the medieval mind, I think, bearing in mind Richard Scott Nokes’s wise caution about whole-middle-age generalisations (which is after all something I’ve criticised others for myself), it’s just not like that. I came up with a phrase for it as far as charters were concerned in my thesis: they are the permanisation of witness. But I now realise that it’s not just charters. Lawcodes, too, are read and used in this way, and Simon followed Patrick Wormald grudgingly in accepting this5. Simon was arguing that even if people didn’t necessarily regard these codes as binding proscriptions as we do our laws, they’re still written down and sent out and that that proves something about literate government. And so it does, but I don’t think that tells us as much as the idea that these codes were not seen as proscriptive enforceable guidelines, even though their models cause them to read that way, ‘like law should’, but as well-intentioned guidelines that set out principles that justices should bear in mind when trying to judge equitably. Real cases aren’t as simple as that, but in an ideal world, this is what you’d do. Because medieval laws are about ideals.6 Meanwhile, the codes that we have written down are reports of the verbum regis on such matters and certainly to be read and absorbed, but not necessarily to be produced to accuse people with and probably not to refer to in court either.7

So actually a document was used like a voice. It gave, and preserved, a testimony that was as good as the person that made it—though the making of it may also have involved oaths before God and on altar and so on and thus have various kinds of supporting sanctions, we are not here dealing with a culture that couldn’t envisage that such things might be made up, that the king’s or pope’s seal might even be on a document that he hadn’t issued… In fact we have various papal letters ordering that previous letters sent under the papal seal should be ignored because they were fakes, so really, this shouldn’t be news.8 A document could be false; the witness could be lying. The only difference with the document is that it lasts longer than the witness, and is, if you have an organised archive, much easier to produce. But even though the writers ramp up the Biblical allusion by calling their charters scripturae, it’s still just another witness, and witnesses who can persuade a court better may trump it. It’s just that in seventy years the document will still be telling anyone who wants to find out what it contains, whereas the better witnesses will all be dead.

Simon starts that article with a typical Anglo-Saxon charter proem:

Whatever is transacted by men of this world, to endure for ever, ought to be fortified securely with rabnks of letters, because the frail memory of men in dying forgets what the writing of letters preserves and retains.

And this is usually seen as proof that the Church preferred to record its title to lands in writing, but actually I think it’s just about what I’m saying: the parchment lives longer than the trusted local notable, and the Church can afford to wait. So I flatter myself that, although Simon believed then and still I think does that Anglo-Saxon government was much more record- and document-based than I think it necessarily need have been, by starting that article with that quote he was trying to express this idea that nearly two decades of clarification and debugging have made it possible for someone like me to put forth in a simple sentence. These documents are the permanisation of a voice that claims authority. But they’re only more than that if the hearers and readers accept it. Or so I reckon.

1. F.-L. Ganshof, “The use of the written word in Charlemagne’s administration” in idem, The Carolingians and the Frankish Monarchy (London 1971), pp. 125-142; R. McKitterick, The Carolingians and the Written Word (Cambridge 1989); and the subsequent enlargement of the ideas through e. g. eadem (ed.), The Uses of Literacy in Early Mediaeval Europe (Cambridge 1990) or K. Heidecker (ed.), Charters and the Use of the Written Word in Medieval Society, Utrecht Studies in Medieval Literacy 5 (Turnhout 2000).

2. J. Campbell, “Observations on English Government from the Tenth to the Twelfth Century” in Transactions of the Royal Historical Society 5th Series Vol. 25 (London 1975), pp. 39-54, repr. in idem, Essays in Anglo-Saxon History, pp. 155-170; S. D. Keynes, “Royal government and the written word in late Anglo-Saxon England” in McKitterick, Uses of Literacy, pp. 226-257; J. Campbell, “The Late Anglo-Saxon State: a maximum view” in Proceedings of the British Academy Vol. 87 (London 1994), pp. 40-65 and now The Anglo-Saxon State (London 2000).

3. For example see the studies in W. Davies & P. Fouracre (edd.), The Settlement of Disputes in Early Medieval Europe (Cambridge 1986).

5 responses to “Medieval attitudes to legal documents”

Good grief! This aft. I was lecturing on the Code of Hammurabi, which is never cited in the many preserved court records of the Old Babylonian period. Which makes people wonder if they were ever enforced. Never cited is enough to make one say the whole thing was an ego-trip for H, a method of pleasing the gods, a route to eternal fame (no eternal life) but maybe your summary of early medieval legal documents is a further point. Judges in Babylon might or might not know what that stele said, but they might not be bound by it even if they did.

I’m not qualified to deal with anything that ancient! But certainly it makes perfect sense to me that Hammurabi would have seen the exercise as a way to make sure his record with the gods was good and clear. On the other hand, medieval law-givers had Roman precedents, so could have been doing it to look like `real princes’, and also had (at least from the Carolingians onwards) an idea of themselves as spiritually answerable for their people. Do we have enough of an idea about Babylonian culture to know whether similar precedents and ideas might have informed Hammurabi, or is he as usually pictured in popular histories the originator of the whole law-giving trend and thus unconcerned with the past’s reasons for legislation? I don’t know, but your comment leaves me wondering.

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